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Tuesday, June 29, 2010

What the Supreme Court is Waiting For

I've taken a first quick look at how the McDonald opinions deal with the Privileges and Immunities Clause. As has been widely reported, only Justice Thomas was ready to revive the PIC and use it to incorporate the 2nd Amendment, while Justice Alito's opinion (joined by three other Justices on this point) "decline[d] to disturb" the current minimalist interpretation. However, the Alito opinion did quote and paraphrase some pretty strong statements about the scholarly consensus opposing that interpretation.

Alito et al.'s refusal to reopen the debate on the PIC seems to be based on two factors:
--The many decades of "substantive due process" precedent offer a usable framework; and
--Neither the petitioners in McDonald nor the scholars who have pointed out the flaws in the minimalist interpretation have provided a coherent explanation of how far the PIC would reach.

Justice Thomas describes the substantive due process approach as "rest[ing] on such tenuous footing" that he cannot endorse it. I suspect he would have more company in this view if it were not for the undefined scope of the PIC. Should some future litigant (or amicus curiae) come forward with an intelligible and historically supported definition of what the PIC should cover, we might see some interest from Justice Alito and/or from one or more of the Justices who joined his opinion.

The problem is related to the problem of how to interpret -- and, some hope, resuscitate -- the 9th Amendment. If the PIC covers more than the first eight amendments to the Constitution, it arguably covers the same rights that are protected from federal infringement by the 9th Amendment.

Monday, June 21, 2010

How to Stump a RNC Fundraising Caller

Just got a call from someone raising money for the Republican National Committee. I told him we were not giving money to the RNC at this time, but rather, were assessing and supporting individual candidates. He asked why; I said it was partly some of the candidates the RNC had supported, and partly an overall impression that the Republican national leadership had less spine than our preferred candidates. He replied, "Well, I'll accept that criticism -- but keep in mind that these conservative candidates absolutely depend on the RNC for various crucial support systems like polling, ..."

(Approximate dialogue:)
KAW: "As soon as the candidates ask us to send our money to the RNC instead of to them directly, we'll certainly heed that request."
RNC: "Whoa, good comeback! Did you write that down? Were you thinking about that ahead of time?"
KAW: "No. I'm a lawyer -- we're supposed to have good comebacks."
RNC: "Good one! I'll have to think about how to answer that one!"
KAW: "OK, why don't you do that on the way to calling the next name on your list."
RNC: "You're bad, Mrs. Wyle!"

(Very satisfying.)